In addition, Art. 107 Labor Code of Ukraine provides double payment for work on a festive or non-working day:
- for contractors - at double unit costs;
- employees whose work is paid at hourly or daily rates - in the amount of double the hourly or daily rate;
- workers receiving a monthly salary - in the amount of a single hourly or daily rate of overweight salary, if work on a holiday and a non-working day was carried out within the limits of the monthly standard of working time, and at double hourly or daily rate of the excess salary, if the work was carried out over a monthly rate .
In this case, it is paid only for hours actually worked by the employee on a non-working day. Or, at the request of the employee, another day of rest is provided.
At the same time, labor legislation does not indicate whether it is possible to consider duty on weekends as work in the meaning of art. 71, Article 72 of the Labor Code of Ukraine.
Under the circumstances of the case, the decision of which was reviewed by the Supreme Court, the employee requested the collection of arrears for payment for work on weekends and holidays, as well as the average earnings during the delay of the calculation.
Although the lawsuit was partially upheld by the local court, the court of appeal dismissed the lawsuit.
According to the legal position of the Supreme Court, there is no payment for the duty, but instead, a restitution is given. In particular, the Supreme Court recalled that in Sections 1, 2 of the resolution of the Secretariat of the All-Union Central Council of Trade Unions of April 02, 1954, No. 233 "On duty at enterprises and institutions", the duty of workers and employees at enterprises and institutions after the end of the working day, weekends and holidays can be entered in exceptional cases and only in agreement with the trade union, local committee. Alternation on weekends and holidays is offset by providing during the next 10 days of rest periods of the same duration as the alternation.
The court found that the employee was involved in the weekend precisely on duty (as evidenced by schedules of duty officers approved by the orders of the director of the enterprise, as well as copies of working time accounting records in which the holiday and weekend days of the plaintiff are not specified as working days).
However, during the period from 2010 to 2015, the plaintiff did not apply for leave from the employer, so no rejection was given. Since special monetary compensation for duty is not provided for by law, there are no grounds for collecting wage arrears, and therefore the average earnings during the delay of settlement at the time of dismissal (the ruling of the Supreme Council / CC on July 26, 2018 in the case № 489/4153/16-ts).
